CASE NO. 15-72440 IN THE UNITED STATES COURT OF APPEALS FOR THE
NINTH CIRCUIT In Re: JOSEPH M. ARPAIO, Sheriff of Maricopa
County,Arizona; et al., Defendants From the United States District
Court For the District of Arizona The Honorable G. Murray Snow,
Presiding Case No. CV-07-2513 NOTICE OF FILING EXPEDITED ORAL
ARGUMENT REQUESTED Larry Klayman, Esq.FREEDOM WATCH, INC. 2020
Pennsylvania Ave. NW, Suite 345 Washington, DC 20006 Tel: (310)
595-0800 Email: [email protected] Jonathon Moseley, Esq. FREEDOM
WATCH, INC. 2020 Pennsylvania Ave. NW, Suite 345 Washington, DC
20006Of Counsel (Not Admitted to Ninth Circuit)Attorneys for
Putative Intervenor Dennis L. Montgomery Case: 15-72440,
08/14/2015, ID: 9647466, DktEntry: 6, Page 1 of 4341 NOTICE OF
FILING Putative Intervenor Dennis Montgomery hereby gives notice of
filing of the Amended Emergency Motion to Stay filed in Melendres
v. Arpaio, No. 15-16440 (9th Cir.) as the two appeals are related
and intertwined. See Exhibit 1 Emergency Motion for Stay. Putative
Intervenor Dennis Montgomery has no objection should the Court wish
to consolidate these two appellate actions and respectfully
requests oral argument with regard to the Emergency Motion for Stay
and with regard to the Petition for Writ of Mandamus filed by
Petitioner Sheriff Joseph M. Arpaio and the other petitioners in
the related appeal. EXPEDITED ORAL ARGUMENT IS REQUESTED.
Dated:August 14, 2015 Respectfully submitted, /s/ Larry Klayman
Larry Klayman, Esq.General Counsel Freedom Watch, Inc. D.C. Bar No.
334581 2020 Pennsylvania Avenue NW, Suite 345 Washington, DC 20006
Telephone: (310) 595-0800 Email: [email protected] Case:
15-72440, 08/14/2015, ID: 9647466, DktEntry: 6, Page 2 of 4342
Jonathon MoseleyVirginia State Bar No. 41058 Freedom Watch, Inc.
2020 Pennsylvania Avenue N.W., Suite 345 Washington, D.C. 20006
(310) 595-0800 [email protected] Attorney for Plaintiff Of
Counsel Case: 15-72440, 08/14/2015, ID: 9647466, DktEntry: 6, Page
3 of 4343 CERTIFICATE OF SERVICE I hereby certify that on August
14, 2015, I electronically filed and served by email the foregoing
document with the Clerk of the Court and the parties counsel by
using the CM/ECF system, I hereby certify that I have served the
following by email: Honorable G. Murray Snow United States District
Courthouse Sandra Day OConnor U.S. Courthouse, Suite 322 401 West
Washington Street, SPC 75 Phoenix, AZ 85003-2160 Stanley Young,
Esq.Andrew Carl Byrnes, Esq.333 Twin Dolphin Road Redwood Shores,
CA 94065 [email protected] 650-632-4700 Attorneys for Plaintiffs
Daniel Pochoda, Esq.ACLU FOUNDATION OF ARIZONA 3707 N. 7th Street,
Suite 235 Phoenix, AZ 85014 [email protected] 602-650-1854
Attorney for Plaintiffs Cecilia D. Wang ACLU FOUNDATION IMMIGRANTS
RIGHTS PROJECT 39 Drumm Street San Francisco, CA 94111
[email protected] Attorney for Plaintiff Melendres Case:
15-72440, 08/14/2015, ID: 9647466, DktEntry: 6, Page 4 of 4344
Thomas P. Liddy, Esq.CIVIL SERVICES DIVISION MARICOPA COUNTY
ATTORNEYS OFFICE 222 North Central Avenue, Suite 1100 Phoenix, AZ
85005 [email protected] 602-506-8541Attorney for Defendant
Joseph Arpaio and Maricopa County Sheriffs Office Michele M.
Iafrate, Esq.IAFRATE & ASSOCIATES 649 North Second Avenue
Phoenix, AZ 85003 [email protected] 602-234-9775Attorney for
Defendant Joseph Arpaio and Maricopa County Sheriffs Office Deborah
L. Garner, Esq.IAFRATE & ASSOCIATES 649 North Second Avenue
Phoenix, AZ 85003 [email protected] for
Defendant Joseph Arpaio and Maricopa County Sheriffs Office Melvin
McDonald JONES SKELTON & HOCHULI, PLC 2901 N. Central Avenue,
Suite 800 Phoenix, AZ 85012-2728
[email protected] for Defendant Sheriff
Joseph Arpaio Andre Segura, Esq.ACLU FOUNDATION IMMIGRANTS RIGHTS
PROJECT 125 Broad Street, 18th Fl.New York, NY 10004
[email protected]: 15-72440, 08/14/2015, ID: 9647466, DktEntry:
6, Page 5 of 4345 212-549-2676 Attorney for Plaintiffs Anne LaiUCI
School of Law 401 E. Peltason Drive. Suite 3500 Irvine, CA 92616
[email protected] 949-824-9894 Jorge M. CastilloMALDEF 634 S. Spring
Street, 11th Fl.Los Angeles, CA 90014 [email protected]
213-629-2512Attorney for Plaintiffs Richard K. Walker WALKER &
PESKIND, PLLC 16100 N. 71st Street, Suite 140 Scottsdale, AZ
85254-2236 [email protected] 480-483-6336 Attorney for Defendant
Maricopa County
/s/ Larry Klayman Larry Klayman, Esq. Case: 15-72440,
08/14/2015, ID: 9647466, DktEntry: 6, Page 6 of 434 Exhibit 1 Case:
15-72440, 08/14/2015, ID: 9647466, DktEntry: 6, Page 7 of 434CASE
NO. 15-16440 IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH
CIRCUIT MANUEL de JESUS ORTEGA MELENDRES,et al., Plaintiffs v.
JOSEPH M. ARPAIO, Sheriff of Maricopa County,Arizona; et al.,
Defendants and DENNIS L. MONTGOMERY, Putative Intervenor From the
United States District Court For the District of Arizona The
Honorable G. Murray Snow, Presiding Case No. CV-07-2513 AMENDED
EMERGENCY MOTION FOR STAY ON APPEAL ORAL ARGUMENT REQUESTED Larry
Klayman, Esq.FREEDOM WATCH, INC. 2020 Pennsylvania Ave. NW, Suite
345 Washington, DC 20006 Tel: (310) 595-0800 Email:
[email protected] Jonathon Moseley, Esq. FREEDOM WATCH, INC. 2020
Pennsylvania Ave. NW, Suite 345 Washington, DC 20006Of Counsel (Not
Admitted to Ninth Circuit)Attorneys for Putative Intervenor Dennis
L. Montgomery Case: 15-16440, 08/13/2015, ID: 9646951, DktEntry: 6,
Page 1 of 427Case: 15-72440, 08/14/2015, ID: 9647466, DktEntry: 6,
Page 8 of 434ii CIRCUIT RULE 27-3 CERTIFICATE
Asthemovingparty,PutativeIntervenorDennisMontgomery,bycounsel,
certifies that to avoid irreparable harm Montgomery must obtain
relief in less than 21 days, including because his property has
already been released to a third party
andheiscontinuallysufferingnewharmastheunderlyingcaseprogresses,and
becauseevidentiaryhearingsarescheduledtoresumeinSeptember2015.See,
MinuteOrder,July20,2015(Doc.No.1179).Thesemattersneedtoberesolved
before the case progresses with plenty of time to prepare.
(i)Thetelephonenumbers,e-mailaddresses,andofficeaddressesofthe
attorneys for the parties; Ms. Michele M. Iafrate, Esq.Ms. Deborah
L. Garner, Esq.IAFRATE & ASSOCIATES 649 North Second Avenue
Phoenix, AZ 85003 [email protected]@iafratelaw.com
602-234-9775Attorney for Defendant Sheriff Joseph Arpaio and
Maricopa County Sheriffs Office in Arizona John T. Masterson, Esq.
M.Melvin McDonald, Esq. JONES, SKELTON & HOCHULI, P.L.C. 2901
North Central Avenue, Suite 800 Phoenix, Arizona 85012 Telephone:
(602) 263-1700 Fax: (602) 200-7827
[email protected]@jshfirm.com Case: 15-16440,
08/13/2015, ID: 9646951, DktEntry: 6, Page 2 of 427Case: 15-72440,
08/14/2015, ID: 9647466, DktEntry: 6, Page 9 of 434iii
[email protected]@jshfirm.com Attorney for Defendant
Sheriff Joseph Arpaio and Maricopa County Sheriffs Office in
Arizona Mr. Richard K. Walker, Esq. WALKER & PESKIND, PLLC
16100 N. 71st Street, Suite 140 Scottsdale, AZ 85254-2236
[email protected] Attorney for Defendant Maricopa
County, Arizona Thomas P. Liddy, Esq.Civil Services Division
MARICOPA COUNTY ATTORNEYS OFFICE 222 North Central Avenue, Suite
1100 Phoenix, AZ 85005 [email protected]
for Maricopa County and Maricopa County Sheriffs Office Mr. Stanley
Young, Esq.Mr. Andrew Carl Byrnes, Esq.COVINGTON & BURLING, LLP
333 Twin Dolphin Road Redwood Shores, CA 94065
[email protected] Fax (650) 632-4800 Attorneys for
Plaintiffs Mr. Daniel Pochoda, Esq.Mr. Joshua Bendor, Esq. ACLU
FOUNDATION OF ARIZONA 3707 N. 7th Street, Suite 235 Phoenix, AZ
85014 [email protected] Case: 15-16440, 08/13/2015,
ID: 9646951, DktEntry: 6, Page 3 of 427Case: 15-72440, 08/14/2015,
ID: 9647466, DktEntry: 6, Page 10 of 434iv Attorney for Plaintiffs
Ms. Cecilia D. Wang, Esq. ACLU FOUNDATION IMMIGRANTS RIGHTS PROJECT
39 Drumm Street San Francisco, CA 94111 [email protected] 415-343-0775
Attorney for Plaintiffs Mr. Andre Segura, Esq.ACLU FOUNDATION
IMMIGRANTS RIGHTS PROJECT 125 Broad Street, 18th Fl.New York, NY
10004 [email protected] 212-549-2676 Attorney for Plaintiffs Mr.
Jorge M. Castillo, Esq. MALDEF 634 S. Spring Street, 11th Fl.Los
Angeles, CA 90014 [email protected] for
Plaintiffs (ii) Facts showing the existence and nature of the
claimed emergency; and A dramatic transformation of the original
case occurred in April 2015, which is now targeting Dennis
Montgomery, Putative Intervenor, although he is not a party, has
never been served, and should have nothing to do with the
litigation.As a result, Montgomerys rights have been violated and
are continuing to be violated Case: 15-16440, 08/13/2015, ID:
9646951, DktEntry: 6, Page 4 of 427Case: 15-72440, 08/14/2015, ID:
9647466, DktEntry: 6, Page 11 of 434v on a weekly and even daily
basis in the case below.The underlying case was concluded by final
judgment on October 2, 2013.(Docs. No. 606, 670.) As one important
example, on July 20, 2015, the presiding judge, the Honorable G.
Murray Snow of the U.S. District Court for the District of Arizona
(District Court) granted a civil motion by the U.S. Department of
Justice (DoJ) to turn over to the U.S. Government the very same
documents, data, and things that the U.S. District Court for the
District of Nevada had already ordered DoJ to return to Montgomery
once before.See, Transcript, July 20, 2015, Status Conference,
Melendres v. Arpaio, Page 42-53, primarily Page 53 (Emphases
added); Order, July 24, 2015.(Docket No. 1190.)Montgomerys
intellectual property, medical records protected by the Health
Insurance Portability and Accountability Act, proprietary trade
secrets, work product, andpersonal property have been taken. The
U.S. District Court for the District of Nevada has already ruled
that (1) the data, documents, intellectual property, tangible
objects, and personal property at issue in this case belong to
Dennis Montgomery, (2) none of it is classified, (3) the U.S.
Government was required to return it all to Montgomery, and (4) the
U.S. Government had deceived that court.See Dennis Montgomery and
the Montgomery Family Trust v. eTreppid Technologies, LLC, Warren
Trepp and the U.S. Department of Defense, Case Nos.
3:06-CV-00056-PMP-VPC and3:06-CV-00145-PMP-VPC, Order, Judge Philip
M. Pro, March 19,2007, and In the Mater of Case: 15-16440,
08/13/2015, ID: 9646951, DktEntry: 6, Page 5 of 427Case: 15-72440,
08/14/2015, ID: 9647466, DktEntry: 6, Page 12 of 434vi the Search
of:The Residence Located at 12720 Buckthorne Lane, Reno, Nevada,
and Storage Units 136, 140, 141, 142 and 143, Double R Storage, 888
Madestro Drive, Reno, Nevada, Case Nos. 3:06-CV-0263-PMP-VPC and
3:06-MJ-00023-VPC, Order, Magistrate Judge Valerie P. Cooke,
November 28, 2006 (Nevada Orders). Judge Snow did not order seizure
documents and things relevant to the Melendres v. Arpaio case.Judge
Snow ordered that all documents relating to Montgomery be
indiscriminately seized and distributed to Plaintiffs counsel,
non-party counsel, and to the DoJ, explicitly acknowledging they
might be irrelevant. Evidentiary hearings (Order, January 16, 2015,
Page 2, Doc. No. 856) will reconvene September 22nd through 25th
and September 29th through October 2nd, 2015.Minute Order, July 20,
2015 (Doc. No. 1179).Judge Snow has also scheduled regular interim
hearings at which he typically issues orders, often without
providing notice or due process, and often affecting Montgomery. As
a result, emergency treatment of Montgomerys motion to stay is
required.
(iii)Whenandhowcounselfortheotherpartieswerenotifiedandwhether they
have been served with the motion; or, if not notified and served,
why that was not done. Counsel for the other parties were notified
via email on July 24, 2015, before 9:00 AM local Arizona time, of
Dennis L. Montgomerys intention to file Case: 15-16440, 08/13/2015,
ID: 9646951, DktEntry: 6, Page 6 of 427Case: 15-72440, 08/14/2015,
ID: 9647466, DktEntry: 6, Page 13 of 434vii this motion for stay on
an emergency basis.Counsel will be served via email as soon as the
motion has been filed with this Court.Case: 15-16440, 08/13/2015,
ID: 9646951, DktEntry: 6, Page 7 of 427Case: 15-72440, 08/14/2015,
ID: 9647466, DktEntry: 6, Page 14 of 4341 AMENDED 1 EMERGENCY
MOTION FOR STAY I.REQUEST FOR ORAL ARGUMENT Dennis L. Montgomery
(Montgomery) respectfully requests oral argument on his motion, and
expeditious handling of the motion and appeal. II.INTRODUCTION
Montgomery respectfully moves this U.S. Court of Appeals for the
Ninth Circuit (Ninth Circuit) to stay the proceedings.Judge Snow
admitted on July 20, 2015, that orders he has issued and continues
to issue could be vacated if he later is recused.Transcript, July
20, 2015, Status Conference, Melendres v. Arpaio, Pages 62-64,
attached as Exhibit 12.It will be impossible to put the genie back
in the bottle if the case is not stayed. Montgomery seeks to
intervene solely to protect his legal and property rights, which
are being run roughshod on by Judge Snow without an opportunity for
him to protect his rights, assert his interests, receive due
process, or be heard. On July 15, 2015, Montgomery filed his Notice
of Appeal (Docket No. 1173) appealing from the trial courts --
a)Order of May 14, 2015 (Docket No. 1093) denying Pro Hac Vice
Admission of Jonathon Moseley Striking Putative Intervenor's Motion
to Intervene and Striking Putative Intervenor's Motion to
Disqualify. (Moseley being 1 The motion is amended only in filing a
companion addendum of relevant portions of the record as exhibits
and adding cites herein to specific page numbers in those exhibits.
Case: 15-16440, 08/13/2015, ID: 9646951, DktEntry: 6, Page 8 of
427Case: 15-72440, 08/14/2015, ID: 9647466, DktEntry: 6, Page 15 of
4342 Montgomerys attorney as an associate to Larry
Klayman.)Attached as Exhibit 6. b)Order of June 10, 2015 (Docket
No.1164) denying motion for disqualification. c)Order of July 10,
2014 (Docket No. 1167) denying motion for reconsideration of
Appellants motion to intervene and application for attorney to
practice pro hac vice. d)All other orders and rulings adverse to
and/or which refer or relate to Putative Intervenor Dennis L.
Montgomery. This Court previously vacated Judge Snows over-use of
Justice Department monitors for matters that haveno bearing on the
constitutional rights at stake here. We therefore vacate these
particular provisions and order the district court to tailor them
so as to address only the constitutional violations at issue. See
Milliken, 433 U.S. at 282. Melendres v. Arpaio, Record No.
13-16285, U.S. Court of Appeals for the Ninth Circuit, Opinion
April 15, 2015, page 23. Yet many of the abuses against Montgomerys
tangible property and intellectual property and rights are
occurring through Judge Snows orders to his monitors to seize
Montgomerys property and take various actions without notice, due
process, or an opportunity to be heard, such as on April 23, 2015,
in the hearing, see Exhibit 1, attached, and by Order, April 27,
2015, (Docket No. 1033). Judge Snow ruled that his monitors would
not be shackled by Defendants Case: 15-16440, 08/13/2015, ID:
9646951, DktEntry: 6, Page 9 of 427Case: 15-72440, 08/14/2015, ID:
9647466, DktEntry: 6, Page 16 of 4343 constitutional rights. (Doc.
No. 1117-1, Ex. 9., 5/14/15; Transcript at 49:15-21, 51, 56),
attached as Exhibit 11. It would be impractical for Montgomery to
also file a motion for a stay in the trial court because Judge Snow
refused to allow his counsel to enter the case pro hac vice and for
him to intervene in the case. However, a motion to stay in the
trial court below awaiting appeal (Docket No. 1171) was filed by
Defendant Sheriff Joe Arpaio (Arpaio) and Chief Deputy Gerard
Sheridan (Sheridan) (specially appearing) of Arizonas MCSO.On July
20, 2015, by a Minute Order at (Docket No. 1179), Judge Snow denied
the motion. III.RELATED CASE WHICH MONTGOMERY RELIES ON In a
related petition before this Ninth Circuit, Defendant Arpaio and
non-party Sheridan filed a petition for writ of mandamus on August
6, 2015, requiring Judge Snows recusal.The petition is Joseph
Arpaio and Gerard Sheridanv. U.S. District Court for the District
of Arizona and Manuel de Jesus Ortega Melendres, Case No. 15-72440.
Montgomery concurs in and agrees with Arpaios and Sheridans
petition, joins in their petition for the recusal of Judge Snow,
and incorporates Arpaios and Sheridans petition in all respects as
if set forth herein in support of his motion for a stay the case,
and also in support of his appeal directly. Case: 15-16440,
08/13/2015, ID: 9646951, DktEntry: 6, Page 10 of 427Case: 15-72440,
08/14/2015, ID: 9647466, DktEntry: 6, Page 17 of 4344 Montgomerys
motion for recusal of Judge Snow compares with Arpaios and
Sheridans petition for writ of mandamus in only two respects: (1)
Montgomery also explicitly moves that the Ninth Circuit vacate the
orders issued by Judge Snow subsequent to the conflict of interest.
(2) Montgomery also filed an affidavit under 28 U.S.C. 144 on May
7, 2015 (Docket No. 1067) which compels unconditionally and without
subjective analysis or discretion that Judge Snow stop all work on
the case and that a different judge hear the question of
recusal.Both pleadings seeking recusal by both Arpaio and Sheridan
and here Montgomery are informed by the expert analysis of noted
judicial ethics expert Professor Ronald Rotunda, whose affidavits
is attached as Exhibit 17. IV.STATEMENT OF FACTS RELEVANT TO THE
MOTION Prior to April 23, 2015, Dennis Montgomery had never been
involved or mentioned in the case below.Yet in the evidentiary
hearing April 21-24, Judge Snow expanded the case, and sua sponte
started attacking Montgomery.See, Transcript, April 23, 2015,
attached as Exhibit 1, Pages 644:11-660:17. Judge Snow then denied
Montgomerys motions seeking to receive due process, notice, and an
opportunity to be heard guaranteed by the Fifth Amendment to the
U.S. Constitution concerning his property and the due process
clause of the Fourteenth Amendment to the U.S. Constitution.See
Order, May 14, Case: 15-16440, 08/13/2015, ID: 9646951, DktEntry:
6, Page 11 of 427Case: 15-72440, 08/14/2015, ID: 9647466, DktEntry:
6, Page 18 of 4345 2015, attached as Exhibit 6; Order, May 29,
2015, attached as Exhibit 7, Order July 10, 2015, attached as
Exhibit 8. The lawsuit filed in 2007 terminated on October 2, 2013,
in the Supplemental Permanent Injunction / Judgment Order.(Docs.
No. 606, 670.)Implementation was set for a hearing in April
2015.(See, Order, January 16, 2015, Page 2, Doc. No. 856).
V.STANDARD OF REVIEW
InervenorrequestsastaypendingappealpursuanttoFederalRulesof
AppellateProcedure(FRAP)Rule8.InNkenv.Holder,theSupremeCourt noted
four factors required: (1) whether the stay applicant has made a
strong showing that he is likely to succeed on the merits; (2)
whether the applicant will be irreparably injured absent a stay;
(3) whether issuance of the stay will substantially injure the
other parties interested in the proceeding; and (4) where the
public interest lies. 556 U.S. 418, 434 (2009). VI.ARGUMENT A.
STANDING OF MONTGOMERY It has already been decided that the
intellectual property, documents, data, work product, copyrighted
material, and things are Montgomerys personal property.See Nevada
Orders, identified, supra.Montgomery has a personal stake in this
matter in which his property has been seized by verbal order on
April Case: 15-16440, 08/13/2015, ID: 9646951, DktEntry: 6, Page 12
of 427Case: 15-72440, 08/14/2015, ID: 9647466, DktEntry: 6, Page 19
of 4346 23, 2015, see Transcript, April 23, 2015, attached as
Exhibit 1, Pages 653:18-25; 657:11-660:17, and by written Order,
April 27, 2015, (Docket No. 1033). B.PLAINTIFF HAS A SUBSTANTIAL
LIKELIHOOD OF PREVAILING ON HIS APPEAL ON THE MERITS 1)Application
Pro Hac Vice Montgomeryhasasubstantial likelihood ofprevailingonhis
appealonhis
attorneysmotiontoappearprohacvice.Montgomeryhasarighttochoose
attorneys whom he believes will be knowledgeable enough of his
circumstances to
representhimeffectivelyandmeaningfully,whomhecanafford,andwhowill
protect his rights on other topics.
Buthere,especially,Montgomerywouldsufferunusualhardship.Montgomery
is both indigent and medically disabled.He could not afford regular
counsel.Also,thelitigationiscontroversialandpolitical,sothatitwouldbe
extremely difficult to find a local lawyer whose livelihood depends
upon regularly appearing before Judge Snow to defend Montgomery
against this rush to judgment. A person is entitled to his choice
of counsel, including an attorney appearing pro hac vice: A
defendant's right to the counsel of his choice includes the right
to haveanout-of-statelawyeradmittedpro hac vice.U.S.v.Lillie,
989F.2d 1054,
1056(9thCir.1993);seealsoPanzardi-Alvarezv.U.S.,879F.2d975,980(1st
Cir.1989)("[A]decisiondenyingaprohacviceadmissionnecessarilyimplicates
Case: 15-16440, 08/13/2015, ID: 9646951, DktEntry: 6, Page 13 of
427Case: 15-72440, 08/14/2015, ID: 9647466, DktEntry: 6, Page 20 of
4347 constitutional concerns."),cert. denied,493 U.S. 1082,110 S.
Ct. 1140,107 L.
Ed.2d1045(1990).Apersonsrighttoretaincounselofhischoicetherefore
represents'arightofconstitutionaldimension'U.S.v.Cunningham,672F.2d
1064,1070(2dCir.1982)(citingU.S.v.Wisniewski,478F.2d274,285(2d
Cir.1973)),thedenialofwhichmayrisetothelevelofaconstitutionalviolation.
Birt v. Montgomery, 725 F.2d 587, 592 (11th Cir.) (en banc), cert.
denied, 469 U.S. 874, 105 S.Ct. 232, 83 L.Ed.2d 161 (1984); Wilson,
761 F.2d at 278-79.The right to retaincounselofchoice
stemsfromonesrightto decidewhatkind ofcasehe wishes to present.U.S.
v. Nichols, 841 F.2d 1485, 1502 (10th
Cir.1988).Attorneysarenotfungibleandoftenthemostimportantdecisiona
defendantmakesinshapinghisdefenseishisselectionofanattorney.U.S.v.
Laura, 607 F.2d 52, 56 (3d Cir.1979);Nichols, 841 F.2d at 1502;
Glasser v. U.S., 315 U.S. 60, 75, 62 S.Ct. 457, 467, 86 L.Ed. 680
(1942). Judge Snow denied Moseleys application to be admitted Pro
Hac Vice on unsupported speculation that there could be a conflict
of interest.But the record does not contain any basis for
disqualification.Moseley filed a Clarification of Motion for
Admittance Pro Hac Vice of Jonathon A. Moseley, dated May 13, 2015,
(Docs. No. 1080, 1081) stating that (emphasis added):
NeitherDennisL.Montgomerynorhiscounselare adverse to Sheriff
Arpaio, his deputies, the Cold Case Posse, or MCSO in any respect,
particularly since this
caseinvolvesacontemptproceedingoverallegations Case: 15-16440,
08/13/2015, ID: 9646951, DktEntry: 6, Page 14 of 427Case: 15-72440,
08/14/2015, ID: 9647466, DktEntry: 6, Page 21 of 4348 of profiling
illegal immigrants.
NopartyhasmovedfordisqualificationofMoseleyascounselfor Montgomery.
No facts have been entered in the record to establish any conflict.
SimplyrecitingthatMoseleyrepresents Arpaioinan unrelatedmatter does
notestablishanyconflictofinterest.Disqualificationapplieswhereserious
conflict exists.See Dunton v. County of Suffolk, 729 F.2d 903, 909
(2d Cir.1984),
amended748F.2d69(2dCir.1984).Theproponentofdisqualificationmust
demonstrate the existence of a conflict of interest which is
serious.The relevant test for disqualification is whether the other
representation is substantially related to the current
representation.See Gas-A-Tron of Arizona v. Union Oil Co. of
California, 534 F.2d 1322, 1325 (9th Cir.), cert. denied,429 U.S.
861, 97 S.Ct. 164, 50L.Ed.2d 139(1976).A
substantialrelationshipisfoundif
thefactualcontextsofthetworepresentationsaresimilarorrelated.Tronev.
Smith, 621 F.2d 994 (C.A.9 (Cal.), 1980) (emphasis added).
Weheldthatthe"relevanttestfordisqualificationis
whethertheformerrepresentationis'substantially related' to the
current representation."Id. at 998;see
Gas-A-TronofArizona,supra,534F.2dat1325;WestinghouseElectricCo.v.GulfOilCorp.,588F.2d
221,223(CA71978)."Substantialityispresentif the factual contexts of
the two representations are similar or related." Trone, supra, 621
F.2d at 998. Trust Corp. of Montana v. Piper Aircraft Corp., 701
F.2d 85 (C.A.9 (Mont.), 1983) (Emphases added). Case: 15-16440,
08/13/2015, ID: 9646951, DktEntry: 6, Page 15 of 427Case: 15-72440,
08/14/2015, ID: 9647466, DktEntry: 6, Page 22 of 4349
Here,thethefactualcontextsofthetworepresentationsarenot similar or
related. Id.Representation of Montgomery in the current case shares
no operative facts nor factual circumstances in common with Arpaios
challenge to the constitutionality of Obamas executive order on
amnesty for illegal aliens.
Montgomeryhasnothingtodowithimmigration,immigration
enforcementorlawenforcement.Hehashadnoinvolvementwith,rolein,
knowledge of, or experience in those topics.Montgomery has no
position on the proper way to conduct traffic stops, find probable
cause, or the like. 2)Motion to Intervene Montgomery has a
substantial likelihood of prevailing on his appeal on his motion to
intervene.The U.S. Government admits that they do not claim to own
the documents, items, or things claimed and owned by Montgomery.The
attorney representing the DoJ, Raphael Gomez, admitted in open
Court on July 20, 2015: The United States does not know whether
there are any documents in the Montgomery files that are in fact
classified or sensitive, but there is a representation that there
were documents that were of the United States. Transcript, July 20,
2015, Status Conference, Melendres v. Arpaio, Page 43 (Emphases
added) (argument by Raphel Gomez for the DoJ). MR. GOMEZ: Yes, Your
Honor. I believe on May 8ththe Court had issued an order to the
defendants' counsel instructing the defendants' counsel to contact
the United States; actually, the CI A general counsel's office. At
that point, we -- I'm an attorney in the Civil Case: 15-16440,
08/13/2015, ID: 9646951, DktEntry: 6, Page 16 of 427Case: 15-72440,
08/14/2015, ID: 9647466, DktEntry: 6, Page 23 of 43410 Division of
the Department of Justice in Washington, D.C., and we were
contacted, and pursuant to that instruction we had spoken to
defendants' counsel, andwith the purpose of, since there had been a
representation made that documents contained in what I 'll refer to
as the Montgomery documents were either documents of the United
States or documents that -- implied were classified or sensitive.
Transcript, July 20, 2015, Status Conference, Melendres v. Arpaio,
Page 42 (Emphases added).
Thatis,JudgeSnoworderedMontgomeryspropertytobehandedoverto Raphael
Gomez of the DoJ based on the off-chance and mere possibility that
there mightbegovernmentdocumentsamongMontgomerysdocuments.Thisisthe
same callous disregard for Montgomerys rights that the Honorable
Phillip Pro and Magistrate Valerie Cooke condemned in the Nevada
Orders, supra. Federal Rules of Civil Procedure (FRCP) Rule 24
governs intervention by additional parties in existing litigation
in the federal courts:Rule 24. Intervention (a) INTERVENTION OF
RIGHT. On timely motion, the court must permit anyone to intervene
who: * * * (2) claims an interest relating to the property or
transaction that is the subject of the action, and is so situated
that disposing of the action may as a practical matter impair or
impede the movant's ability to protect its interest, unless
existing parties adequately represent that interest. (b) PERMISSIVE
INTERVENTION. (1) In General. On timely motion, the court may
permit anyone to intervene who: Case: 15-16440, 08/13/2015, ID:
9646951, DktEntry: 6, Page 17 of 427Case: 15-72440, 08/14/2015, ID:
9647466, DktEntry: 6, Page 24 of 43411 * * * (B) has a claim or
defense that shares with the main action a common question of law
or fact. Montgomerys motion is timely.The case started to involve
Montgomery only in late April of 2015.Montgomery filed his motion
within two weeks.Montgomery also complied with FRCP Rule 24(c) by
providing notice and a proposed pleading. 3)Motion for
Disqualification of Judge Snow Montgomery has a substantial
likelihood of prevailing on his motion for recusal, as does Arpaio
and Sheridan in their related petition for writ of mandamus also
requesting recusal. Montgomery filed his affidavit under 28 U.S.C.
144 on May 7, 2015 (Docket No. 1067), and in that pleading also
further claimed essentially the same additional grounds requiring
recusal of Judge Snow under 28 U.S.C. 455 as raised by Arpaio and
Sheridan. Accordingly, Montgomery joins in and agrees with the
petition by Arpaio and Sheridan in their arguments for recusal of
Judge Snow, and incorporates their petition by reference herein for
the purposes of this motion for a stay. Montgomery is in agreement
with the Defendants Arpaio and Sheridan, but adds an additional
demand for recusal under 28 U.S.C. 144 and also moves this Court to
vacate Judge Snows orders issued while a conflict of interest
exists, particularly as they relate to Dennis Montgomery. Case:
15-16440, 08/13/2015, ID: 9646951, DktEntry: 6, Page 18 of 427Case:
15-72440, 08/14/2015, ID: 9647466, DktEntry: 6, Page 25 of 43412
The demands for recusal are timely.Most of the circumstances
requiring recusal were created by Judge Snow himself starting only
on April 23, 2015. The courts strive to eliminate even the
appearance of bias. Thus even if there is no bias in fact, an
appearance of bias or prejudice requires recusal if it is
sufficient to raise a question in the mind of 'the average citizen'
about a judge's impartiality. York v. United States, 785 A.2d 651,
655 (D.C. 2001). Judge Snow decided to make himself, his wife, and
Montgomery major topics.Arpaios lawyers filed an objection to
procedures and on the last page also to Judge Snow questioning
Defendant Arpaio on areas on which he did not receive prior
notice.(Docket No. 1032, April 28, 2015.)Judge Snow then ruled that
his questioning about the Grissom Investigation (Judge Snows wife)
and the Seattle operation (Dennis Montgomery) will not be excluded.
(Docket No. 1046, May 4, 2015.) Judge Snow injected personal issues
into the case on April 23 and April 24, 2015.See, Motion for
Recusal or Disqualification of District Court Judge G. Murray Snow,
May 22, 2015, Pages 8-9. (Docket No. 1117).Montgomery filed an
affidavit and certificate under 28 U.S.C. 144Whenever a party to
any proceeding in a district court makes and files a timely and
sufficient affidavit that the judge before whom the matter is
pending has a personal bias or prejudice either against him or in
favor of any adverse party, such judge shall proceed no further
therein, but another judge shall be assigned to hear such
proceeding.The affidavit shall state the facts and the reasons for
the belief that bias or prejudice exists. Case: 15-16440,
08/13/2015, ID: 9646951, DktEntry: 6, Page 19 of 427Case: 15-72440,
08/14/2015, ID: 9647466, DktEntry: 6, Page 26 of 43413 Montgomerys
affidavit on May 7, 2015 (Docket No. 1067) compelled Judge Snow to
proceed no further in the case and requires another judge shall be
assigned to hear such proceeding, without subjective analysis or
discretion. A judges impartiality might reasonably be questioned by
the public where the judges wife volunteers that the judge hates
the defendant and will do anything to hound him from office (Docket
No. 1117) and neither the judge nor his wife have denied it, sought
to explain the admission, nor apologized. Karen Grissom, her
husband Dale, and their son Scott encountered Judge Snows wife,
Cheri Snow, in a Someburros restaurant in Tempe, Arizona.Cheri Snow
and Karen Morris (now Grissom) had known each other from childhood
and caught up on news.Dale and Scott report passively
listening.Cheri Snow boasted that her husband was presiding over
the trial of Sheriff Joe Arpaio, that Judge Snow hated Arpaio and
will do whatever it takes to get Arpaio out of office.An
investigator confirmed that Judge Snows wife was in the restaurant
on that day and time.See, Transcripts of interviews with Karen
Grissom, Dale Grissom, and Scott Grissom, attached to the motion
for recusal of Arpaio and Montgomery. Neither Judge Snow nor his
wife have denied that Cheri Snow volunteered that Judge Snow hates
Arpaio and will do anything to get him out of office, denied that
Judge Snow in fact hates Arpaio or denied that Judge Snow is using
the Case: 15-16440, 08/13/2015, ID: 9646951, DktEntry: 6, Page 20
of 427Case: 15-72440, 08/14/2015, ID: 9647466, DktEntry: 6, Page 27
of 43414 litigation to embarrass Arpaio in his re-election to
remove him from office.Judge Snow invited the U.S. Attorney to send
a prosecutor to monitor this civil case. The Grissoms have never
wavered in their account.The Grissoms are by their own report and
from the investigation non-political, uninterested witnesses who
have never had any relationship with or support for Sheriff Joe
Arpaio.Karen Grissoms recollection in the transcript is the most
detailed and specific because, as Dale Grissom and Scott Grissom
report in the transcript, the women were primarily talking to each
other catching up on their lives since their childhood
acquaintance.See, Interview Transcripts, id.
JudgeSnowhaspersonalknowledgeofdisputedevidentiaryfacts concerning
the proceeding.Judge Snow will have or already does have a private
explanation from his own wife of these disputed facts and events.
Judge Snow has made clear that he insists on pursuing the Karen
Grissom / Cheri Snow and the Montgomery investigation as proving
some allegations (not yet identified) against the Defendants in the
case below.Judge Snow over-ruled the Defendants objections to
exclude the topics.(Docket No. 1046.) Therefore, any defense
attorney must call Judge Snow and Judge Snows wife as witnesses in
order to present a thorough defense to whatever charges Judge Snow
plans to bring.Judge Snow is likely to preside over the testimony
and cross-examination of his own wife, (Docket No. 1117), who will
be testifying about him. Case: 15-16440, 08/13/2015, ID: 9646951,
DktEntry: 6, Page 21 of 427Case: 15-72440, 08/14/2015, ID: 9647466,
DktEntry: 6, Page 28 of 43415 Judge Snow simultaneously refuses to
exclude the topics, yet claims that his wife would not offer
admissible testimony.These are inextricably linked.Judge Snows
insistence, over objection, that the proceedings below must include
the investigation into what his wife said about Judge Snow being
biased necessarily causes his wifes testimony to become
relevant.Without Cheri Snows testimony, charges or allegations
against the Defendants for investigating Karen Grissoms tip about
what Cheri Snow said could not be sustained as relevant issues in
the case. C. MONTGOMERY WILL BE IRREPARABLY HARMED ABSENT A STAY A
stay is required because Montgomery is being harmed in ways that
cannot be adequately remedied.A stay is required because if this
Court determines that Judge Snow should recuse himself, any and all
orders or proceedings will likely have to be vacated, as Judge Snow
admitted on July 20, 2015 -- However, I am wondering if the County
has been fully advised that one of the positions Mr. Popolizio and
Mr. Masterson is taking is that if in fact this Court is removed by
the Ninth Circuit from presiding over this case, the supplemental
permanent injunction and the findings of fact and conclusions of
law Imade three years ago should be vacated, in which case there
would be no injunctive relief on which the County or the plaintiffs
could rely. * * * So I wonder if the County has been fully advised,
if the plaintiffs in United States versus Arpaio have been fully
advised, that the movants are taking the position Case: 15-16440,
08/13/2015, ID: 9646951, DktEntry: 6, Page 22 of 427Case: 15-72440,
08/14/2015, ID: 9647466, DktEntry: 6, Page 29 of 43416 not only
that I should be removed from presiding over the contempt hearing,
but that the injunctive relief and the findings of fact and
conclusions of law Ientered years ago should be vacated.
Transcript, July 20, 2015, Status Conference, Melendres v. Arpaio,
Pages 62-64(emphases added). D. PLAINTIFFS WILL NOT BE HARMED BY A
STAY It cannot be overlooked that this case was concluded on
October 2, 2013 (Docs. No. 606, 670) 21 months ago.Plaintiffs
attorneys suggest that they have to wait for relief, but legally,
they have already obtained a final judgment. These are
post-judgment proceedings that concern implementation only. (See,
Order, January 16, 2014, Page 2, Doc. No. 856).The only legitimate
issue remaining is whether MCSO disobeyed the injunction on purpose
or was merely slow in implementation in a Sheriffs office that
serves 4 million Arizona residents. However, the Plaintiffs will
not receive implementation of the injunction any faster or slower
either way.Regardless of any stay, MCSO and Arpaio are facing
sufficient motivation to implement the injunction as quickly as
possible.MCSO still knows that it must comply with the permanent
injunction and any delay can and will be used against them when the
stay is lifted. E.THE PUBLIC INTEREST FAVORS A STAY This case is
ostensibly about upholding the constitutional rights of the
Plaintiffs and those similarly-situated.Yet the District Court is
violating the Case: 15-16440, 08/13/2015, ID: 9646951, DktEntry: 6,
Page 23 of 427Case: 15-72440, 08/14/2015, ID: 9647466, DktEntry: 6,
Page 30 of 43417 constitutional rights of Montgomery.It is in the
public interest that the federal courts respect all the
constitutional rights of all persons. Plaintiffs purport to
represent the community.The analysis is the same as in (D)
above.Either MCSO is sufficiently motivated by now or they are
not.A stay will not change that.A possible decision as to state of
mind will not change that. However, the public interest is also
served by improving the reputation of the federal judiciary in the
eyes of the public. VII.CONCLUSION AND REQUEST FOR RELIEF This
Court should order a stay of the proceedings and vacate Judge Snows
orders until the appeal is heard. Dated:August 13, 2015Respectfully
submitted, /s/ Larry Klayman Larry Klayman, Esq.General Counsel
Freedom Watch, Inc. D.C. Bar No. 334581 2020 Pennsylvania Avenue
NW, Suite 345 Washington, DC 20006 Telephone: (310) 595-0800 Email:
[email protected] Admitted in the Ninth Circuit Jonathon
MoseleyVirginia State Bar No. 41058 Freedom Watch, Inc. 2020
Pennsylvania Avenue N.W., Suite 345 Washington, D.C. 20006 (310)
595-0800 [email protected] Case: 15-16440, 08/13/2015, ID:
9646951, DktEntry: 6, Page 24 of 427Case: 15-72440, 08/14/2015, ID:
9647466, DktEntry: 6, Page 31 of 43418 Attorney for Plaintiff Of
Counsel (not admitted in Ninth Circuit) CERTIFICATE OF COMPLIANCE I
certify that this petition complies with the page limitations of
Fed. R. App. 27(d), and that this moion complies with the typeface
requirements of Fed. R. App. P. 32(a)(5) and the type style
requirements of Fed. R. App. P. 32(a)(6) because it has been
prepared in a proportionally spaced typeface using Microsoft Word
in 14-point Times New Roman style. CERTIFICATE OF SERVICE2 I hereby
certify that on August 13, 2015, I electronically filed the
foregoing document with the Clerk of the Court for the U.S. Court
of Appeals for the Ninth Circuit by using the Ninth Circuits CM/ECF
system, and I caused a copy of the foregoing document to be served
upon the following counsel of record in the case in the trial court
below by first-class U.S. mail, postage prepaid: Ms. Michele M.
Iafrate, Esq.Ms. Deborah L. Garner, Esq.IAFRATE & ASSOCIATES
649 North Second Avenue Phoenix, AZ 85003
[email protected]@iafratelaw.com 602-234-9775Attorney
for Defendant Sheriff Joseph Arpaio and Maricopa County Sheriffs
Office in Arizona 2 Appellant / Movant , by counsel, carefully
reviewed recent filings in the record in the court below to update
and confirm this certificate of service for this amended version of
the motion.Attorneys appearing in the case below include those
representing many non-parties and witnesses and changes that
resulted from the Ninth Circuits ruling that the Maricopa County
Sheriffs Office should be included legally as part of Maricopa
County, Arizona. Case: 15-16440, 08/13/2015, ID: 9646951, DktEntry:
6, Page 25 of 427Case: 15-72440, 08/14/2015, ID: 9647466, DktEntry:
6, Page 32 of 43419 John T. Masterson, Esq. M.Melvin McDonald, Esq.
JONES, SKELTON & HOCHULI, P.L.C. 2901 North Central Avenue,
Suite 800 Phoenix, Arizona 85012 Telephone: (602) 263-1700 Fax:
(602) 200-7827 [email protected]@jshfirm.com
[email protected]@jshfirm.com Attorney for Defendant
Sheriff Joseph Arpaio and Maricopa County Sheriffs Office in
Arizona Mr. Richard K. Walker, Esq. WALKER & PESKIND, PLLC
16100 N. 71st Street, Suite 140 Scottsdale, AZ 85254-2236
[email protected] Attorney for Defendant Maricopa
County, Arizona Mr. Stanley Young, Esq.Mr. Andrew Carl Byrnes,
Esq.COVINGTON & BURLING, LLP 333 Twin Dolphin Road Redwood
Shores, CA 94065 [email protected] Fax (650) 632-4800
Attorneys for Plaintiffs Mr. Daniel Pochoda, Esq.Mr. Joshua Bendor,
Esq. ACLU FOUNDATION OF ARIZONA 3707 N. 7th Street, Suite 235
Phoenix, AZ 85014 [email protected] Attorney for
PlaintiffsCase: 15-16440, 08/13/2015, ID: 9646951, DktEntry: 6,
Page 26 of 427Case: 15-72440, 08/14/2015, ID: 9647466, DktEntry: 6,
Page 33 of 43420 Ms. Cecilia D. Wang, Esq. ACLU FOUNDATION
IMMIGRANTS RIGHTS PROJECT 39 Drumm Street San Francisco, CA 94111
[email protected] 415-343-0775 Attorney for Plaintiff Melendres Thomas
P. Liddy, Esq.Civil Services Division MARICOPA COUNTY ATTORNEYS
OFFICE 222 North Central Avenue, Suite 1100 Phoenix, AZ 85005
[email protected] for Maricopa County
and Maricopa County Sheriffs Office Andre Segura, Esq.ACLU
FOUNDATION IMMIGRANTS RIGHTS PROJECT 125 Broad Street, 18th Fl.New
York, NY 10004 [email protected] 212-549-2676 Attorney for
Plaintiffs Mr. Jorge M. Castillo, Esq. MALDEF 634 S. Spring Street,
11th Fl.Los Angeles, CA 90014
[email protected] for Plaintiffs Mr. Barry
D. Mitchell, Esq. MITCHELL STEIN CAREY One Renaissance Square 2
North Central Avenue, Suite 1900 Case: 15-16440, 08/13/2015, ID:
9646951, DktEntry: 6, Page 27 of 427Case: 15-72440, 08/14/2015, ID:
9647466, DktEntry: 6, Page 34 of 43421 Phoenix, Arizona 85004 (602)
358-0290 Attorney for Chief Deputy Sheridan Mr. Greg S. Como, Esq.
Mr. M. Craig Murdy, Esq.Mr. Dane A. Dodd, Esq. LEWIS BRISBOIS
BISGAARD & SMITH LLP Phoenix Plaza Tower II 2929 North Central
Avenue, Suite 1700 Phoenix, Arizona 85012-2761 Telephone:
602.385.1040 Facsimile: 602.385.1051 [email protected]
[email protected] [email protected] Attorneys
for Executive Chief Brian Sands Mr. Timothy D. Mygatt, Esq. Special
Counsel Mr. Mark Kappelhoff, Esq. Deputy Assistant Attorney
GeneralCivil Rights Division, Special Litigation SectionU.S.
Department of Justice 601 D St. NW, Suite 5200Washington, D.C.
20004Tel. (202) 514-2000 Fax (202)
[email protected] for Intervenor the
United States /s/ Larry Klayman Larry Klayman, Esq.General Counsel
Freedom Watch, Inc. D.C. Bar No. 334581 2020 Pennsylvania Avenue
N.W., Suite 345 Washington, DC 20006 Telephone: (310) 595-0800
Email: [email protected] Case: 15-16440, 08/13/2015, ID: 9646951,
DktEntry: 6, Page 28 of 427Case: 15-72440, 08/14/2015, ID: 9647466,
DktEntry: 6, Page 35 of 43422 Case: 15-16440, 08/13/2015, ID:
9646951, DktEntry: 6, Page 29 of 427Case: 15-72440, 08/14/2015, ID:
9647466, DktEntry: 6, Page 36 of 434CASE NO. 15-16440 IN THE UNITED
STATES COURT OF APPEALS FOR THE NINTH CIRCUIT MANUEL de JESUS
ORTEGA MELENDRES,et al., Plaintiffs v. JOSEPH M. ARPAIO, Sheriff of
Maricopa County,Arizona; et al., Defendants and DENNIS L.
MONTGOMERY, Putative Intervenor From the United States District
Court For the District of Arizona The Honorable G. Murray Snow,
Presiding Case No. CV-07-2513 EXHIBITS IN SUPPORT OF MOTION FOR
STAY ON APPEAL Exhibits 1 through 17 Larry Klayman, Esq.FREEDOM
WATCH, INC. 2020 Pennsylvania Ave. NW, Suite 345 Washington, DC
20006 Tel: (310) 595-0800 Email: [email protected] Attorneys for
PutativeIntervenor Dennis L. Montgomery
Jonathon Moseley, Esq. FREEDOM WATCH, INC. 2020 Pennsylvania
Ave. NW, Suite 345 Washington, DC 20006Of Counsel (not admitted in
Ninth Circuit)Case: 15-16440, 08/13/2015, ID: 9646951, DktEntry: 6,
Page 30 of 427Case: 15-72440, 08/14/2015, ID: 9647466, DktEntry: 6,
Page 37 of 4341 Putative Intervenor Dennis L. Montgomery, by
counsel, hereby files the following exhibits in support of his
motion for stay pending appeal: Exhibit 1 Transcript Excerpts,
April 23, 2015, Evidentiary Hearing, introducing into the case for
the first time Dennis Montgomery and the seizureand distribution of
his documents, intellectual property, intangible property and
tangible property. Exhibit 2 Application of Attorney for Admission
to Practice Pro Hac Vice Pursuant to LRCiv 83.1(b)(2) of Jonathon
Moseley May 7, 2015, to represent Montgomery (attached statement
remains under seal) Exhibit 3 Motion to Intervene of Dennis
Montgomery, May 7, 2015 Exhibit 4 Motion for Reconsideration of
Motion for Admittance Pro Hac Viceof Jonathon A. Moseley and
Memorandum of Law in Support Thereof, filed to represent Dennis
Montgomery, May 18, 2015 Exhibit 5 Order, Judge Snow, May 4, 2015
Exhibit 6 Order, Judge Snow, May 14, 2015 Exhibit 7 Order, Judge
Snow, May 29, 2015 Exhibit 8 Order, Judge Snow, July 10, 2015,
denying Motion for Reconsideration (Appellant is not aware of any
hearing or hearing transcript related to Judge Snows order on
Montgomerys Motion for Reconsideration) Exhibit 9 Order, Judge
Snow, July 24, 2015 Exhibit 10 Transcript Excerpts, May 8, 2015,
Status Conference Exhibit 11 -- Transcript Excerpts, May 14, 2015,
Status Conference Exhibit 12 -- Transcript Excerpts, July 20, 2015,
Status Conference, Exhibit 13 -- Transcript Excerpts, July 24,
2015, Status Conference Exhibit 14 Facebook Message from Karen
Grissom to Sheriff Joe Arpaio Case: 15-16440, 08/13/2015, ID:
9646951, DktEntry: 6, Page 31 of 427Case: 15-72440, 08/14/2015, ID:
9647466, DktEntry: 6, Page 38 of 4342 Exhibit 15 Petition for Writ
of Mandamus -- for disqualification of theHonorable G. Murray Snow,
filed by Sheriff Joe Arpaio and Gerard Sheridan in Ninth Circuit as
Case No. 15-72440, August 6, 2015 (attached here without exhibits)
Exhibit 16 Excerpt of Transcript of Investigator's Interview
withKaren Grissom, October 26, 2013, concerning conversationwith
the wife of Judge Snow concerning Sheriff Joe Arpaio Exhibit 17
Declaration of Professor Ronald Rotunda in support ofDennis
Montgomerys motion for recusal of Judge Snow Dated:August 13,
2015Respectfully submitted, /s/ Larry Klayman Larry Klayman,
Esq.General Counsel Freedom Watch, Inc. D.C. Bar No. 334581 2020
Pennsylvania Avenue NW, Suite 345 Washington, DC 20006 Telephone:
(310) 595-0800 Email: [email protected] Admitted in the Ninth
Circuit Jonathon MoseleyVirginia State Bar No. 41058 Freedom Watch,
Inc. 2020 Pennsylvania Avenue N.W., Suite 345 Washington, D.C.
20006 (310) 595-0800 [email protected] Attorney for Plaintiff Of
Counsel (not admitted in Ninth Circuit) Case: 15-16440, 08/13/2015,
ID: 9646951, DktEntry: 6, Page 32 of 427Case: 15-72440, 08/14/2015,
ID: 9647466, DktEntry: 6, Page 39 of 4343 CERTIFICATE OF SERVICE I
hereby certify that on August 13, 2015, I electronically filed the
foregoing document and the exhibits identified herein with the
Clerk of the Court for the U.S. Court of Appeals for the Ninth
Circuit by using the Ninth Circuits CM/ECF system, and I caused a
copy of the foregoing document to be served upon the following
counsel of record in the case in the trial court below by
first-class U.S. mail, postage prepaid: Ms. Michele M. Iafrate,
Esq.Ms. Deborah L. Garner, Esq.IAFRATE & ASSOCIATES 649 North
Second Avenue Phoenix, AZ 85003
[email protected]@iafratelaw.com 602-234-9775Attorney
for Defendant Sheriff Joseph Arpaio and Maricopa County Sheriffs
Office in Arizona John T. Masterson, Esq. M.Melvin McDonald, Esq.
JONES, SKELTON & HOCHULI, P.L.C. 2901 North Central Avenue,
Suite 800 Phoenix, Arizona 85012 Telephone: (602) 263-1700 Fax:
(602) 200-7827 [email protected]@jshfirm.com
[email protected]@jshfirm.com Attorney for Defendant
Sheriff Joseph Arpaio and Maricopa County Sheriffs Office in
Arizona Mr. Richard K. Walker, Esq. WALKER & PESKIND, PLLC
16100 N. 71st Street, Suite 140 Scottsdale, AZ 85254-2236
[email protected] Case: 15-16440, 08/13/2015, ID:
9646951, DktEntry: 6, Page 33 of 427Case: 15-72440, 08/14/2015, ID:
9647466, DktEntry: 6, Page 40 of 4344 Attorney for Defendant
Maricopa County, Arizona Mr. Stanley Young, Esq.Mr. Andrew Carl
Byrnes, Esq.COVINGTON & BURLING, LLP 333 Twin Dolphin Road
Redwood Shores, CA 94065 [email protected] Fax (650)
632-4800 Attorneys for Plaintiffs Mr. Daniel Pochoda, Esq.Mr.
Joshua Bendor, Esq. ACLU FOUNDATION OF ARIZONA 3707 N. 7th Street,
Suite 235 Phoenix, AZ 85014 [email protected]
Attorney for Plaintiffs Ms. Cecilia D. Wang, Esq. ACLU FOUNDATION
IMMIGRANTS RIGHTS PROJECT 39 Drumm Street San Francisco, CA 94111
[email protected] 415-343-0775 Attorney for Plaintiff Melendres Thomas
P. Liddy, Esq.Civil Services Division MARICOPA COUNTY ATTORNEYS
OFFICE 222 North Central Avenue, Suite 1100 Phoenix, AZ 85005
[email protected] for Maricopa County
and Maricopa County Sheriffs Office Andre Segura, Esq.Case:
15-16440, 08/13/2015, ID: 9646951, DktEntry: 6, Page 34 of 427Case:
15-72440, 08/14/2015, ID: 9647466, DktEntry: 6, Page 41 of 4345
ACLU FOUNDATION IMMIGRANTS RIGHTS PROJECT 125 Broad Street, 18th
Fl.New York, NY 10004 [email protected] 212-549-2676 Attorney for
Plaintiffs Mr. Jorge M. Castillo, Esq. MALDEF 634 S. Spring Street,
11th Fl.Los Angeles, CA 90014
[email protected] for Plaintiffs Mr. Barry
D. Mitchell, Esq. MITCHELL STEIN CAREY One Renaissance Square 2
North Central Avenue, Suite 1900 Phoenix, Arizona 85004 (602)
358-0290 Attorney for Chief Deputy Sheridan Mr. Greg S. Como, Esq.
Mr. M. Craig Murdy, Esq.Mr. Dane A. Dodd, Esq. LEWIS BRISBOIS
BISGAARD & SMITH LLP Phoenix Plaza Tower II 2929 North Central
Avenue, Suite 1700 Phoenix, Arizona 85012-2761 Telephone:
602.385.1040 Facsimile: 602.385.1051 [email protected]
[email protected] [email protected] Attorneys
for Executive Chief Brian Sands Mr. Timothy D. Mygatt, Esq. Special
Counsel Case: 15-16440, 08/13/2015, ID: 9646951, DktEntry: 6, Page
35 of 427Case: 15-72440, 08/14/2015, ID: 9647466, DktEntry: 6, Page
42 of 4346 Mr. Mark Kappelhoff, Esq. Deputy Assistant Attorney
GeneralCivil Rights Division, Special Litigation SectionU.S.
Department of Justice 601 D St. NW, Suite 5200Washington, D.C.
20004Tel. (202) 514-2000 Fax (202)
[email protected] for Intervenor the
United States /s/ Larry Klayman Larry Klayman, Esq.General Counsel
Freedom Watch, Inc. D.C. Bar No. 334581 2020 Pennsylvania Avenue
N.W., Suite 345 Washington, DC 20006 Telephone: (310) 595-0800
Email: [email protected] Case: 15-16440, 08/13/2015, ID: 9646951,
DktEntry: 6, Page 36 of 427Case: 15-72440, 08/14/2015, ID: 9647466,
DktEntry: 6, Page 43 of 434 Exhibit 1 Case: 15-16440, 08/13/2015,
ID: 9646951, DktEntry: 6, Page 37 of 427Case: 15-72440, 08/14/2015,
ID: 9647466, DktEntry: 6, Page 44 of
43412345678910111213141516171819202122232425512UNITED STATES
DISTRICT COURTFOR THE DISTRICT OF ARIZONAManuel de Jesus
OrtegaMelendres, et al.,Plaintiffs,vs.Joseph M. Arpaio, et
al.,Defendants.
)))))))))))CV 07-2513-PHX-GMSPhoenix, ArizonaApril 23, 20158:34
a.m.REPORTER'S TRANSCRIPT OF PROCEEDINGSBEFORE THE HONORABLE G.
MURRAY SNOW(Evidentiary Hearing Day 3, pages 512-817)Court
Reporter: Gary Moll401 W. Washington Street, SPC #38Phoenix,
Arizona 85003(602) 322-7263Proceedings taken by stenographic court
reporterTranscript prepared by computer-aided transcriptionCase:
15-16440, 08/13/2015, ID: 9646951, DktEntry: 6, Page 38 of 427Case:
15-72440, 08/14/2015, ID: 9647466, DktEntry: 6, Page 45 of
43412345678910111213141516171819202122232425CV07-2513, Melendres v.
Arpaio, 4/23/15 Evidentiary Hrg 513A P P E A R A N C E SFor the
Plaintiffs: Cecillia D. Wang, Esq.AMERICAN CIVIL LIBERTIES
UNIONFOUNDATIONImmigrants' Rights Project39 Drumm StreetSan
Francisco, California 94111(415) 343-0775Stanley Young, Esq.Hyun S.
Byun, Esq.COVINGTON & BURLING, L.L.P.333 Twin Dolphin Drive,
Suite 700Redwood Shores, California 94065(650) 632-4700Daniel J.
Pochoda, Esq.Joshua D. Bendor, Esq.AMERICAN CIVIL
LIBERTIESFOUNDATION OF ARIZONA3707 N. 7th St., Suite 235Phoenix,
Arizona 85014(602) 650-1854Andre I. Segura, Esq.AMERICAN CIVIL
LIBERTIES UNIONFOUNDATIONImmigrants' Rights Project125 Broad
Street, 17th FloorNew York, New York 10004(212) 549-2676For the
Defendants: Michele M. Iafrate, Esq.IAFRATE & ASSOCIATES649 N.
2nd AvenuePhoenix, Arizona 85003(602) 234-9775For the Defendant
Maricopa County:Richard K. Walker, Esq.WALKER & PESKIND,
P.L.L.C.16100 N. 71st StreetSuite 140Scottsdale, Arizona 85254(480)
483-6336Case: 15-16440, 08/13/2015, ID: 9646951, DktEntry: 6, Page
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46 of 43412345678910111213141516171819202122232425CV07-2513,
Melendres v. Arpaio, 4/23/15 Evidentiary Hrg 514A P P E A R A N C E
SFor the Defendant Arpaio: A. Melvin McDonald, Esq.JONES, SKELTON
& HOCHULI, P.L.C.2901 N. Central Avenue, Suite 800Phoenix,
Arizona 85012(602) 263-1700For Chief Deputy Sheridan: Lee D. Stein,
Esq.MITCHELL STEIN CAREYOne Renaissance Square2 North Central
AvenueSuite 1900Phoenix, Arizona 85004(602) 358-0290For Executive
Chief Sands: Greg S. Como, Esq.LEWIS BRISBOIS BISGAARD& SMITH,
L.L.P.Phoenix Plaza Tower II2929 N. Central AvenueSuite
1700Phoenix, Arizona 85012-2761(602) 385-1040For Deputy Chief
MacIntyre: Gary L. Birnbaum, Esq.DICKINSON WRIGHT,
P.L.L.C.Attorneys at Law1850 N. Central Avenue, Suite 1400Phoenix,
Arizona 85004(602) 285-5000For Lieutenant Sousa: David S.
Eisenberg, Esq.DAVID EISENBERG, P.L.C.2702 N. 3rd StreetSuite
4003Phoenix, Arizona 85004(602) 237-5076ALSO PRESENT: Chief Robert
WarshawChief John GirvinChief Raul MartinezCase: 15-16440,
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43412345678910111213141516171819202122232425CV07-2513, Melendres v.
Arpaio, 4/23/15 Evidentiary Hrg 515I N D E XWitness: PageJOSEPH M.
ARPAIODirect Examination Continued by Mr. Young
518Cross-Examination by Ms. Iafrate 587Redirect Examination by Mr.
Young 614Examination by the Court 625JOSEPH SOUSADirect Examination
by Ms. Wang 661Cross-Examination by Ms. Iafrate
757Cross-Examination by Mr. Como 779Redirect Examination by Ms.
Wang 789Recross-Examination by Ms. Iafrate 797E X H I B I T SNo.
Description Admitted78 MCSO News Release, Sheriffs Deputies Raid
561Phoenix Business for Employees using False ID,All Arrested
Suspected of Being in US Illegallydated 9/20/201284 MCSO News
Release, Sheriffs Deputies Execute 565Search Warrant at Concrete
Company in Glendaledated 10/18/201285 MCSO Shift Summary (Sonoran
Concrete) 565DR 12-156907 dated 10/18/2012(MELC157123 -
MELC156125)87 MCSO News Release, 72st Operation Targeting 570False
Identifications Used to Gain Employmentdated 3/14/2013Case:
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43412345678910111213141516171819202122232425CV07-2513, Melendres v.
Arpaio, 4/23/15 Evidentiary Hrg 516E X H I B I T SNo. Description
Admitted88 MCSO Shift Summary (America's Taco Shop) 571DR
12-108378, DOJ Ex. 284 dated 3/14/2013(MCS001291219 -
MCS001291221)132 E-mail chain from Sousa re "FW: Updated stats"
756and attaching "Criminal Employments stats03-28-12.doc;
03-28-12.doc" dated 3/28/2012(MELCl14928 - MELCl 14931)168 MCSO
Memorandum from Sousa re "Document 706Production Request Regarding
Request IAM-22"dated 1/12/2015 (MELC 114948)169 E-mail chain from
Sousa re "Current HSU Ops 677Manual" originally dated March 27,
2012, thenJanuary 13, 2015, and attaching HSU ops manual(MELCl14960
- MELCl14967)180 MCSO News Release, West Valley
568Asian/International Supermarket UnderInvestigation by Sheriff's
Office, ArpaioSays dated 1/17/2013 (MELC109370 - MELC109371)182
MCSO News Release, 6 Adults and One Juvenile 572Detained in Human
Smuggling Operation dated5/18/2013 (MELC167859 - MELC167860)193A A
Video Clip 1 of Story re Crime Sweep, 580October 19, 2013193B Video
Clip 2 of Story re Crime Sweep, 582October 19, 2013193C Video Clip
3 of Story re Crime Sweep, 582October 19, 2013195A Video Clip 1 of
KNVX after 1070 Decision, 527June 25, 2012196A Video Clip 1 of Fox
Latino at Republican 545Convention, August 31, 2012Case: 15-16440,
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43412345678910111213141516171819202122232425CV07-2513, Melendres v.
Arpaio, 4/23/15 Evidentiary Hrg 517E X H I B I T SNo. Description
Admitted196C Video Clip 3 of Fox Latino at Republican
547Convention, August 31, 2012196D Video Clip 4 of Fox Latino at
Republican 548Convention, August 31, 2012196E Video Clip 5 of Fox
Latino at Republican 550Convention, August 31, 2012197A Video Clip
1 of Fox News after after 1070 536Decision, June 26, 2012198A Video
Clip 1 of Univision after 1070 Decision, 529June 25, 2012198B Video
Clip 2 of Univision after 1070 Decision, 530June 25, 2012199A Video
Clip 1 of CNN June 25, 2012 533199B Video Clip 2 of CNN June 25,
2012 534200A Video Clip 1 of Fox Cavuto June 25, 2012 539201A Video
Clip 1 of Maldonado Interview published 521April 13, 2012201B Video
Clip 2 of Maldonado Interview published 524April 13, 2012203 Video
Excerpt from The Joe Show, released 585February 26, 2014212` Email
Chain from J. Sousa to J. Spurgin, et. 725al., re "Master Stat
Sheet for Op Desert Sky"dated March 31, 2011 (MELC172485 -
MELC172503)Sousa Depo Exhibit 192216 Email from J. Sousa to M.
Trowbridge, et al., 668re "The Saving of Emails for Ongoing
Lawsuitsper Att Tim Casey" dated March 27, 2012(MELC173868 -
MELC173870)Case: 15-16440, 08/13/2015, ID: 9646951, DktEntry: 6,
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4341234567891011121314151617181920212223242508:34:2008:34:3408:34:4908:34:56Arpaio
- Direct, Melendres v. Arpaio, 4/23/15 518P R O C E E D I N G STHE
CLERK: All rise. The United States DistrictCourt for the District
of Arizona is now in session, theHonorable G. Murray Snow
presiding.THE COURT: Please be seated.THE CLERK: Civil case number
07-2513, Melendres v.Arpaio, on for continued evidentiary
hearing.THE COURT: Do we have any matters of business,housekeeping
to take up?MR. YOUNG: Nothing from plaintiffs, Your Honor.MS.
IAFRATE: No, Your Honor.MR. WALKER: Nothing from the County at this
time,Your Honor.MR. COMO: No, Your Honor.THE COURT: Please proceed,
Mr. Young.MR. YOUNG: Thank you, Your Honor.JOSEPH M.
ARPAIO,recalled as a witness herein, having been previously
dulysworn, was examined and testified further as follows:DIRECT
EXAMINATIONBY MR. YOUNG:Q. Good morning, Sheriff.A. Good morning.Q.
In the early part of 2012 you believed that illegalCase: 15-16440,
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- Direct, Melendres v. Arpaio, 4/23/15 519immigration was your job,
and you continued -- and you intendedto continue to do that job,
correct?A. Certain functions, yes.Q. You focused on illegal
immigration because many peoplethought it was important, right?A. I
can't hear you. Could you repeat that?Q. You did that because many
people thought that illegalimmigration was an important issue, is
that right?A. That's one of the reasons. The other reason is to
enforcethe laws.Q. You did an interview with Hector Maldonado of
ConservativeTV Online in April 2012, correct?A. I don't recall.Q.
Well, I'm going to ask you to take a look at PX --Exhibit 201A.A.
Is that in here?THE COURT: Do you want it played, Mr. Young?MR.
YOUNG: Yes. We're having a little trouble withthe sound, Your
Honor, apologies.(Video clip played as follows:)SHERIFF ARPAIO: So
I have a job to do, illegalimmigration.(Video clip stopped.)MS.
IAFRATE: This is not in evidence.THE COURT: Yes. Shall we deal with
-- I'm going toCase: 15-16440, 08/13/2015, ID: 9646951, DktEntry:
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- Cross, Melendres v. Arpaio, 4/23/15 602Q. Sheriff, at the
sheriff's office there's a chain ofcommand, correct?A. Yes.Q. And
you're the top link in that chain of command?A. Yes.Q. And you have
people that report to you, correct?A. Yes.Q. Back in 2011, can you
tell me which chiefs directlyreported to you?A. I believe it was
Chief Deputy Sheridan. He was the chiefdeputy.Q. And then would he
be the only direct report to you, or didothers directly report to
you?A. I believe I had the public information officer
reportingdirectly to me. We do have about 4500 employees, plus
8,500 inthe jails that I'm responsible for, but I do it
throughdelegating authority.Q. There was a group called the Human
Smuggling Unit. Are youfamiliar with that unit?A. Yes.Q. Who was
the supervisor of that unit?A. I believe it was Chief Brian
Sands.Q. Did he directly report to you?A. No.Q. In the human -- the
Human Smuggling Unit wasn't housed inCase: 15-16440, 08/13/2015,
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- Cross, Melendres v. Arpaio, 4/23/15 603the same building that you
were at, correct?A. No, it was not.Q. How did you get your
information regarding what wasoccurring with the Human Smuggling
Unit?A. Well, sometimes I would get it from our public
informationofficer that would receive calls on these type of
situations,and sometimes I would probably get it from Brian
Sands.Q. Did you ever go out to the Human Smuggling Unit where
theywere housed?A. I may have a couple times.Q. Did you receive
briefings from anyone from the HumanSmuggling Unit?A. May have, but
I don't recall.Q. I want to show you what was shown to you in
directexamination, Exhibit 78.Sheriff, are you familiar with the
different types ofduties that occurred at the Human Smuggling
Unit?A. Are you referring to the rank?Q. No. For example, what they
did. You -- we've heard aboutinterdictions, correct?A. Yes.Q.
Traffic stops?A. Yes.Q. And then also there were search warrants
executed regardingemployer ID and identity thefts, correct?Case:
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- Cross, Melendres v. Arpaio, 4/23/15 604A. Yes.Q. Those employer
search warrants regarding identity thefts,that was another area of
the law that you could continue toenforce, correct?A. Yes.Q. These
search warrants, for example, the ID theft raiddiscussed in this
Exhibit 78, that wasn't the result of atraffic stop, correct?A.
No.Q. Sheriff, when did you become aware that some of yourprevious
actions from MCSO violated the preliminary injunction?A. I don't
have the time frame, but it was, as I say, many,many, many months
later. Could have been before the -- aroundthe time of the -- was
it 1913, May 1913?Q. 2013?A. 2013.Q. When the judge issued its
findings of fact and conclusionsof law?A. Yes. And that's the time
I sent a newsletter to all theemployees regarding the judge's
decision.Q. You're saying that you sent out a newsletter. Are
youtalking about some sort of Briefing Board?A. Yes.Q. And why did
you send out a Briefing Board in May 2013?A. It had to do with
detainment and also using race. ThoseCase: 15-16440, 08/13/2015,
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- Cross, Melendres v. Arpaio, 4/23/15 605are two issues that I
wanted to get across to our people.Q. Well, explain more. What were
you trying to get across toyour people in May 2013 regarding --A.
That it should not be done.Q. That what should not be done?A. By
using race or detaining people illegally.Q. You were not familiar
with those concepts in thepreliminary injunction until May 2013?A.
No.Q. My statement was accurate?A. Yes.Q. There came a time where a
monitor was appointed, correct?A. Yes.Q. Did you express what your
involvement with the monitorwould be to your organization?A. If I
recall, I think the monitor came to my office, Ibelieve it was
around January 1914 -- 2014. We had a nicediscussion. He has a law
enforcement background, so we hadsomething in common.And I believe
he mentioned that he would rather dealwith my staff, realizing that
I had a large organization torun, and I said, you know, that's a
good idea. Talk to mystaff. And I believe that's what's been going
on ever since.Q. Since the monitor has been appointed have you done
anythingto block him from doing his job?Case: 15-16440, 08/13/2015,
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- Cross, Melendres v. Arpaio, 4/23/15 606A. No.Q. Have you been
open and honest with him?A. Yes.Q. Have you encouraged your staff
to be open and honest withhim?A. Yes.Q. There was a portion of the
2014 order that called forcommunity outreach.Do you recall that?A.
Yes.Q. And it was ordered that your office was to do some
meetingsregarding community outreach.Do you recall that?A. Yes.Q.
And your lawyers objected to that based on the FirstAmendment and
your First Amendment to either speak or notspeak, correct?A. Yes.Q.
And ultimately the judge rescinded that piece of the
order,correct?A. Yes.Q. On direct examination you were played an
approximately10-second clip in which you talked about community
outreach.Do you recall that?A. Yes.Case: 15-16440, 08/13/2015, ID:
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- Cross, Melendres v. Arpaio, 4/23/15 607Q. Although it was a small
clip, do you recall what you meantby that statement?A. Is that the
one where I had an officer that was killed?Q. Yes. And on the tape,
the portion that was played for youtalked about community
outreach.Do you recall what you were referring to?A. I was really
occurring -- talking about myself, becausewhether you want to call
it outreach or not, I personallystopped two vehicles with the four
Hispanics in each vehicle.They had no problems. They were very
friendly. Came out,wanted my photograph. I let them take my
pictures.I call that my outreach where I actively got
involved,because I was there trying to give support to my deputies
toget intelligence on gang members that we believe killed
myofficer.Q. Investigating a shooting of one of your officers
didn'tviolate the preliminary injunction, did it?A. No.Q. Trying to
find who killed that officer didn't violate thepreliminary
injunction, did it?A. No.Q. Were you involved in any way prior to
the original trial ingathering evidence?A. No.Q. Did anyone ever
ask you to review documents and videos inCase: 15-16440,
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- Cross, Melendres v. Arpaio, 4/23/15 608preparation for the
original trial?A. No.Q. When a request for documents and/or videos
comes into thesheriff's office, where does it normally go?A. It
would -- are you talking about legal documents?Q. So there's a
request that someone in your agency gatherdocuments. Where would
that request go?A. I presume if it's legal it will go to our legal
office. Ifit's other situations, it would go to the people
responsiblefor that request, I guess.Q. You don't get involved in
the gathering and disseminatingof discovery requests?A. No.Q.
That's up to your legal liaison's office, normally?A. Yes.Q. Those
are the people that process the paperwork?A. Yes.Q. I want to talk
to you about the May 2014 hearing that youattended.Do you recall
that?A. Yes.Q. It was a hearing that you attended, and you had
interactionwith Judge Snow, correct?A. Yes.Q. And you all were
talking about gathering some videotapes.Case: 15-16440, 08/13/2015,
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- Cross, Melendres v. Arpaio, 4/23/15 609Do you recall that?A.
Yes.Q. Do you recall what Judge Snow's directive was of you
inrelation to gathering those videotapes?A. Well, if I recall, it
was like a two-and-a-half-hoursession, but I believe he mentioned
something about themonitor, cooperate with the monitor.Q. Then
following that hearing, where did you go?A. I went back to my
office.Q. And what did you do there?A. Well, eventually we had a
meeting, I believe, with thechief deputy, counsel Tom Liddy and Tim
Casey, and I believethere was another lawyer in the room.Q.
Christine Stutz?A. Yes.Q. At some point we heard Chief Trombi say
that he wassummoned into the room.Do you recall that?A. Yes.Q. And
he was told to send out an e-mail.Do you recall that?A. Yes.Q. You
weren't the one that told him to send out an e-mail,correct?A. I
did not.Case: 15-16440, 08/13/2015, ID: 9646951, DktEntry: 6, Page
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- Cross, Melendres v. Arpaio, 4/23/15 610Q. Chief Sheridan told him
to send out the e-mail?A. I believe he did.Q. Did anyone in the
room object to that directive?A. No.Q. Not even counsel?A. No.Q. Do
you know what happened as a result of that e-mail thatwas sent out
by Chief Trombi?A. You mean after the fact?Q. Yes.A. Well, I don't
directly know, but I believe they were tryingto obtain videos.Q. Do
you know if videos were obtained?A. I believe they were.Q. Sheriff,
on direct examination you were asked do you thinkthere should be
consequences for your actions.Do you recall that?A. Yes.MS.
IAFRATE: And in fact, can you put up 71, page 2.BY MS. IAFRATE:Q.
This was the document that we started your testimony with.In fact,
in this document that was filed, with your permissionand your
consent, says, on the second line, that there areconsequences for
these violations, correct?A. What number --Case: 15-16440,
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- Cross, Melendres v. Arpaio, 4/23/15 611Q. It's the --A. --
paragraph?Q. -- first full sentence.A. Yes.Q. You admit that there
should be consequences, correct?A. Yes.Q. Sheriff, you weren't
hiding that the Human Smuggling Unitcontinued to do interdictions,
correct?A. Hiding?Q. Right.A. No.Q. You weren't -- you weren't --
you were continuing to talkabout it to the press, correct?A. Yes.Q.
The Human Smuggling Unit continued to generate paperwork asa result
of their operations, correct?A. Yes.Q. You didn't direct anyone not
to talk about it, correct?A. No.Q. With all this press releases and
documents that weregenerated, were you willfully violating the
Court's order, thepreliminary injunction?A. No.Q. Were you
knowingly violating the Court's preliminaryinjunction?Case:
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- Cross, Melendres v. Arpaio, 4/23/15 612A. No.Q. There is a
statement that was read to you that said, "If Ihad to do it all
over again under the same circumstances, I'ddo it again." Do you
recall that?A. Yes.Q. What did you mean by that?A. I believe it had
to do with an operation in Guadalupe,could have been 2008. Had
information about violence, so wedid a crime suppression
operation.In the meantime, we had the authority under 287(g)
toenforce that type of law. We had two top officials fromWashington
there doing this operation. We arrested about 45people for
different types of crimes, and six or seven werehere illegally that
were booked in for those state charges, andI believe two others we
did not have any state law, so theywere turned over to ICE pursuant
to our 287(g) authority.But that operation had to do with violent
crime --Q. So --A. -- and when the news media asked me I did say, I
may havebeen wrong, but I was talking about in that same
circumstanceway back in those years where we had the authority, or
wealways had the authority to go after those that commit
crimes,that I would have done it over again.Q. In 2008 you had the
authority to do what you did pursuantto the laws, correct?Case:
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- Cross, Melendres v. Arpaio, 4/23/15 613A. Yes.Q. Okay. So now,
knowing what you know regarding thepreliminary injunction, knowing
what you know now, would youhave done the exact same things,
activities, from 2011 to 2013that your Maricopa County Sheriff's
Office was conductinginterdictions and either holding people or
turning them over toICE or Border Patrol?A. We still would do the
crime operations, but as far as thatpart of it is yes, you're
right, we would not do it now.Q. You wouldn't do it the same.A.
No.Q. You know that that violates the preliminary injunction?A.
Yes.MS. IAFRATE: I have nothing further.THE COURT: Mr. Walker.MR.
WALKER: Your Honor, I was up to the wee hours ofthis morning and
came to the conclu- -- two conclusions.Number one, that it just was
not possible for me to preparecompetently to examine this witness
at this time. And I'vespoken to all counsel. I'd like to take the
Court up on itsoffer to be able to recall the witness and
potentially take hisdeposition in the interim.THE COURT: Well, Mr.
Walker, I -- I think that I willat least allow you to make that
request. I'm not going to ruleon it now. And the reason why is, as
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- Exam by Court, Melendres v. Arpaio, 4/23/15 625EXAMINATIONBY THE
COURT:Q. I do appreciate that you have indicated that you
haverespect for the federal court and for judges. I assume that
Iwas intended to be included among that group when you said it?A.
Yes, sir.Q. I want you to know that while we have disagreements,
and Ithink some sharp ones in the past, I respect you in
yourposition as the sheriff of Maricopa County, and recognize
thatyou have been elected by the people of this county and I wantto
afford you that same respect.So I'm going to have some questions,
some of them maybe difficult to answer, and I'm going to certainly
let yourattorneys participate if they have concerns, but I'm going
totry to ask you my questions with respect, and I hope you'llafford
me the same in response.A. Yes, sir.Q. Now, we began by discussing
-- or you began yourtestimony -- I can't even remember whether it
was this morningor last night -- by discussing the scope of the
matters thatyou had -- in which you admit that you're in civil
contempt.And there were actually three matters that I specified in
myorder to show cause.Do you remember those? Do you remember what
theywere? Three separate matters that related to civil
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- Exam by Court, Melendres v. Arpaio, 4/23/15 642Q. Was that under
the SID, Special Investigations Division?A. I'm not sure.Q. Does
the Special Investigations Division do investigationswith
confidential informants? Are they -- do they handleconfidential
informants?A. Yes.Q. And does the captain of SID have to approve
investigationsinvolving confidential informants in terms of
payments to them?A. Your Honor, I don't know how far down it goes
for thatauthority, whether it's a lieutenant or the captain or
deputychief.Q. Okay. But somebody in the SID has to approve
payments thatare made to confidential informants?A. Yes.Q. Are
there any exceptions to that policy?A. I'm not sure.Q. Well, do you
remember that right at the time -- and it was,as I recollect, in
June of 2014 -- that you namedCaptain Bailey to become captain over
the ProfessionalStandards Bureau instead of the Special
InvestigationsDivision, that there was a newspaper article, maybe a
blog,that was published by somebody named Stephen Lemons?A. I know
who he is.Q. Do you usually read the articles that he writes about
you?A. Once in a while, yes.Case: 15-16440, 08/13/2015, ID:
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- Exam by Court, Melendres v. Arpaio, 4/23/15 643Q. Do you remember
him writing about investigations that hehad sources were telling
him your office was doing out ofSeattle involving confidential
informants?A. He may -- I may remember that, yes.Q. Let me just
give you -- I've copied the article. Let megive it to you and see
if it helps to refresh your recollectionthat you've read it.Do you
want to distribute that?(Off-the-record discussion between the
Court and theclerk.)THE COURT: Hand it to the attorneys.THE
WITNESS: It's a long article.BY THE COURT:Q. It is a long article,
and if you need to take the time toread it, you can do that. But
I'm just asking if you have anyrecollection, now having me give it
to you, if you ever readit.I will tell you that in the article he
says he talkedto you about some of the materials in the article,
and that'skind of on the last page, if that will help you.(Pause in
proceedings.)BY THE COURT:Q. Do you remember reading this
article?A. I believe I read it.Q. And I just want to ask you some
questions about the articleCase: 15-16440, 08/13/2015, ID: 9646951,
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- Exam by Court, Melendres v. Arpaio, 4/23/15 644and some of the
things that it states.I recognize, and I believe Mr. Lemons does in
thearticle, too, that he can't personally vouch for everythingthat
the article says, it's just what he's had some sourcestell him.So I
don't mean to suggest one way or another that thearticle is
accurate. I just want to ask about some of thethings that it says
so I understand them. And I trust thatyou'll tell me the truth, and
you understand you're under oath,correct?Did you detail some of
your personnel to conductinvestigations that resulted in their
frequent trips and staysin the Washington state area beginning in
2013 or 2014?A. We had a couple investigations -- investigators go
upthere, yes.Q. And who were those investigators?A. I think it was
Zullo and Brian Mackiewicz.Q. And Mackiewicz is --A. A detective.Q.
Is he in your -- is he assigned to you personally, yourrisk
detail?A. Well, we had a lot of threats on me and --Q. I understand
that. Is that generally his assignment, toprotect you and assess
risks that come against you?A. Yes.Case: 15-16440, 08/13/2015, ID:
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- Exam by Court, Melendres v. Arpaio, 4/23/15 645Q. And so you were
aware when he was gone to the Seattle area?A. Yes.Q. And what about
-- I think there's a Mr. Anglin mentioned inthe article. Was he
also an officer that was assigned to go toSeattle as well?A. I
think for a short period of time he did.Q. And is zoo -- did you
say Zulu? Zullo. Is he a possemember?A. Yes.Q. And did you pay
funds from Maricopa County for Mr. Zullo togo to the Washington
area?A. Yes.Q. And then I assume you paid Anglin and Mackiewicz
theirtravel costs?A. We don't pay for Zullo, but --Q. But you paid
Mackiewicz and Anglin.A. Yes.Q. And did you also hire a consultant
in the Washington statearea to help you with this investigation or
investigations thatMackiewicz and Zullo were working with?A. Not
that I know of. May have.Q. Did you have a confidential informant
in the Washingtonarea that they were working with?A. Yes.Q. And
does the article accurately identify who thatCase: 15-16440,
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- Exam by Court, Melendres v. Arpaio, 4/23/15 646confidential
informant was?It says the name is Dennis Montgomery. Is that
theconfidential informant?A. Yes.Q. And so when Mr. Montgomery was
a confidential informant, hewas some sort of a computer
consultant?A. Yes.Q. And as a confidential informant, his fees
would have to bepaid, or approved, if in fact it was before the
transfer ofCaptain Bailey, his fees would have had to have been
approvedby Captain Bailey, or any payments to him would have had
tohave been approved by Captain Bailey?A. I'm not sure at the time
period, Your Honor.Q. Now, the article says that you were
personally conductingthese investigations and personally aware of
them.Were you?A. Well, on a certain issue I was.Q. And what issue
was that?A. It was the president's birth certificate.Q. Okay. So
you were -- Mr. Montgomery was doing researchinto the president's
birth certificate. Did Mr. Montgomeryever tell you -- or, well, did
you ever use Mr. Montgomery toinvestigate anything about the
Department of Justice?A. I don't believe that Montgomery was
involved in the birthcertificate. It was other violations that he
was looking into.Case: 15-16440, 08/13/2015, ID: 9646951, DktEntry:
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- Exam by Court, Melendres v. Arpaio, 4/23/15 647Q. And what were
those?A. Had to do with computer tampering and also bank fraud,
thattype of thing.Q. Did you ever -- you see that the article says
that whatMontgomery was actually doing was investigating me.You see
that that's what the article says?A. It's not true.Q. All right.
Are you aware that I've ever been investigatedby anyone?A. You
investigated?Q. Yes.A. No. No.Q. Any of my activities?A. No.Q. Any
of my family members?A. That have been investigated?Q. Yes.A. Not
by our office.Q. Are you aware of anybody who's investigated any of
myfamily members by any -- any office. Or anybody.A. I believe
there was an issue, but once again, it wasn't myoffice.Q. Well,
whose office was it?A. It was an outside investigator not hired by
us.Q. Who hired the outside investigator?Case: 15-16440,
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- Exam by Court, Melendres v. Arpaio, 4/23/15 648A. Could have been
counsel.Q. "Counsel" meaning your counsel?A. Yes.Q. And would that
have been Mr. Casey or Ms. Iafrate?A. I believe it would have been
Mr. Casey.Q. And who did he hire?A. It was the counsel.Q. I'm
sorry?A. Mr. Casey.Q. Mr. Casey. Who did Mr. Casey hire?A.
Pardon?Q. Who did Mr. Casey hire? To investigate me or a member
ofmy family, or members of my family.A. We weren't investigating
you, Your Honor.Q. Well, who were you investigating?A. We were
investigating some comments that came to ourattention.Q. Okay. And
how did they come to your attention?A. Through e-mail.Q. And do you
know who the author of the e-mail was?A. I don't have the name
right now.Q. Okay. Let me ask, in his article Mr. Lemons indicates
--well, let me get -- let me get this clear. Your testimony isthat
Mr. Mackiewicz, Mr. Anglin, Mr. Zullo, never were involvedin any
investigation of the Department of Justice or of me, isCase:
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- Exam by Court, Melendres v. Arpaio, 4/23/15 649that correct?A.
Not -- no, not of you.Q. Well, were they involved in an
investigation of theDepartment of Justice?A. I'm not sure.Q. Were
they trying to determine whether the Department ofJustice had
contacted me in any way?A. I'm not sure about that.Q. You're not
sure about that?A. No.Q. And would Mr. Montgomery have been
involved in assistingthem to determine whether the Department of
Justice hadcontacted me in any way?A. No. I believe there was
information about many judgesbeing infiltrated or wiretaps and that
type of thing. That'swhat the informer said that right now we don't
have muchconfidence in.Q. Well, who was the informer and what did
the informer say?A. We're speaking about Montgomery.Q. All right.
Montgomery said that judges had beeninfiltrated?A. That many judges
-- if I recall, that they're wire -- theirphones were tapped,
e-mails, that type of thing.Q. By the Department of Justice?A. By
someone.Case: 15-16440, 08/13/2015, ID: 9646951, DktEntry: 6, Page
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- Exam by Court, Melendres v. Arpaio, 4/23/15 650Q. And so Mr.
Montgomery proposed to -- who did he propose toat the MCSO that the
DOJ was inappropriately --I assume it was of interest to you if
they werewiretapping my phone, among others?A. Yes. And mine,
too.Q. And yours, too.And so were you conducting this
investigation?A. No.Q. Who was in your department?A. This is Zullo
and I think Mackiewicz.Q. What rank does Mackiewicz have?A. He's a
detective.Q. Who did he report to about this investigation?A. I
think he and Zullo worked together.Q. And who did they report to?A.
And Jerry Sheridan.Q. They reported to Deputy Chief Sheridan?A. At
one time, but let me just say that the informationwe're -- we've
been getting is the informer's not very viable.Q. Well, I
understand that, I think the article itself says,that you became
aware after a considerable amount of time thatthe reporter was
giving you junk. Is that fair to say?A. Yes.Q. Or the informer was
giving you junk?A. Yes.Case: 15-16440, 08/13/2015, ID: 9646951,
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- Exam by Court, Melendres v. Arpaio, 4/23/15 651Q. How much money
did you spend on the informant?A. I don't recall.Q. How much money
did you spend on the investigation?A. I don't have the figures.Q.
Do you -- does the -- I guess I want to straighten somethings out
to make sure that I understand them.It's typical that confidential
informants get controlnumbers?A. I believe so.Q. And that they are
maintained in a confidential informantlog and monitored by the
Special Investigations Divisioncommander or his designee?A. I
believe so.Q. And that for the time that this matter was going to
beinvestigated, or was being investigated, that would have
beenCaptain Bailey, correct?A. I'm still not sure on the time --
time frame, or whether heknew about it.Q. Well, I will tell you
that the article suggests that theinvestigation began in October of
2013. And Mr. Lemons, in thearticle, says that as of January 2015
he kept making documentrequests to the MCSO, and the MCSO continued
to say this is anongoing investigation, we're not going to give you
anything.So is this investigation still ongoing, or have
youdetermined pretty much that the informant was unreliable
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- Exam by Court, Melendres v. Arpaio, 4/23/15 652it's not worth
proceeding?A. Well, it's almost finished.Q. I'm sorry?A. It's
almost finished on -- especially on his reliability.Q. All right.
Are you investigating him now?A. I'm not sure.Q. Well, I want to
understand exactly what it is thatMr. Mont -- your understanding of
what it is thatMr. Montgomery told you DOJ was doing that you
wereinvestigating.A. Once again, he seemed to indicate that someone
waspenetrating in the e-mails of our local attorneys and
others,judges, that type of thi